Energy Conservation Program: Certification of Commercial and Industrial HVAC, Refrigeration and Water Heating Equipment

AGENCY:

Office of Energy Efficiency and Renewable Energy, Department of Energy.

ACTION:

Final rule.

SUMMARY:

The U.S. Department of Energy (DOE or the “Department”) is adopting amendments to the compliance dates for manufacturers to submit certification reports for certain commercial and industrial equipment covered under the Energy Policy and Conservation Act of 1975, as amended (EPCA or the “Act”). Specifically, DOE is extending the compliance date for the certification provisions for commercial refrigeration equipment; commercial heating, ventilating, air-conditioning (HVAC) equipment; and commercial water heating (WH) equipment to December 31, 2013. DOE is extending the certification date for automatic commercial ice makers to August 1, 2013. Lastly, DOE is adopting a correction to the packaged terminal equipment standards table, which would impact standard-size packaged terminal air conditioners and packaged terminal heat pumps with a cooling capacity of 15,000 Btu/h.

DATES:

This rule is effective December 31, 2012.

ADDRESSES:

This rulemaking can be identified by docket number EERE-2012-BT-CE-0048 and/or RIN number 1904-AC90.

Docket: The docket is available for review at http://www.regulations.gov, including Federal Register notices, public meetings attendee lists, transcripts, comments, and other supporting documents/materials. All documents in the docket are listed in the http://www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

For further information on how to submit or review public comments or view hard copies of the docket in the Resource Room, contact Ms. Brenda Edwards at (202) 586-2945 or email: Brenda.Edwards@ee.doe.gov.

FOR FURTHER INFORMATION CONTACT:

Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Email: Ashley.Armstrong@ee.doe.gov; and Ms. Laura Barhydt, U.S. Department of Energy, Office of the General Counsel, Forrestal Building, GC-32, 1000 Independence Avenue SW., Washington, DC 20585. Telephone: (202) 287-5772. Email: Laura.Barhydt@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Authority

Title III of the Energy Policy and Conservation Act of 1975, as amended (“EPCA” or “the Act”) sets forth a variety of provisions designed to improve energy efficiency. Part A of Title III (42 U.S.C. 6291-6309) provides for the Energy Conservation Program for Consumer Products Other Than Automobiles. The National Energy Conservation Policy Act (NECPA), Public Law 95-619, amended EPCA to add Part A-1 of Title III, which established an energy conservation program for certain industrial equipment. (42 U.S.C. 6311-6317)

Sections 6299-6305, and 6316 of EPCA authorize DOE to enforce compliance with the energy and water conservation standards (all non-product specific references herein referring to energy use and consumption include water use and consumption; all references to energy efficiency include water efficiency) established for certain consumer products and commercial equipment. (42 U.S.C. 6299-6305 (consumer products), 6316 (commercial equipment)) DOE has promulgated enforcement regulations that include specific certification and compliance requirements. See 10 CFR part 429; 10 CFR part 431, subparts B, U, and V.

B. Background

On March 7, 2011, DOE published a final rule in the Federal Register that, among other things, modified the requirements regarding manufacturer submission of compliance statements and certification reports to DOE (March 2011 Final Rule). 76 FR 12421. This rule was largely procedural in nature; it did not amend pre-existing sampling provisions, test procedures, or conservation standard levels for any covered products or equipment. It did, however, impose new or revised reporting requirements for some types of covered products and equipment, including a requirement that manufacturers submit annual reports to the Department certifying compliance of their basic models with applicable standards. Finally, the Department emphasized that manufacturers could use their discretion in grouping individual models as a “basic model” such that the certified rating for the basic model matched the represented rating for all included models. See 76 FR 12428-12429 for more information. This reflected a basic requirement of the Department's longstanding self-certification compliance regime—that efficiency certifications and representations must be supported by either testing or an approved alternative method of estimating efficiency.

The March 2011 Final Rule provided for the revised certification provisions to be effective on July 5, 2011. Certain manufacturers of particular types of commercial and industrial equipment stated that, for a variety of reasons, they would be unable to meet that deadline. As a result in a final rule published June 30, 2011, the Department extended the compliance date for certification of commercial refrigeration equipment; commercial HVAC equipment; commercial WH equipment; and walk-in coolers and freezers (June 30 Final Rule). 76 FR 38287 (June 30, 2011). DOE also acknowledged in the June 30 Final Rule that numerous manufacturers for certain types of commercial equipment appear to have been making representations of efficiency and determining compliance with the applicable energy conservation standards without testing products in accordance with all of the provisions of the DOE test procedures, which include sampling plans and certification testing tolerances.

In the June 30 Final Rule, DOE stated that it believed 18 months would be sufficient to provide manufacturers with the time necessary to develop the data and supporting documentation needed to populate the certification reports and certify compliance with DOE's regulations, including the existing testing and sampling procedures. DOE also emphasized that all covered equipment must meet the applicable energy conservation standard and that all testing procedures and sampling provisions were unaffected by the final rule.

On May 31, 2012, DOE published a proposed rule to revise and expand its regulations regarding alternative efficiency determination methods (AEDMs). (77 FR 32038). AEDMs reduce testing burdens by allowing manufacturers to use computer simulations, mathematical models, and other alternative methods to determine the amount of energy used or efficiency by a particular basic model. AEDM provisions for commercial HVAC equipment and commercial WH equipment already exist, but DOE has proposed to revise those regulations and to allow manufacturers of commercial refrigeration equipment to use AEDMs. DOE has not yet finalized the AEDM rulemaking. See Docket EERE-2011-BT-TP-0024. The Department is also reviewing recommendations regarding the feasibility of a negotiated rulemaking to revise the certification requirements for commercial HVAC equipment and commercial refrigeration equipment.

In an October 2012 letter to the Secretary of Energy, the Air Conditioning, Heating and Refrigeration Institute (AHRI) requested another certification compliance date extension. (AHRI, No. 1 at pp. 1-2). Specifically, AHRI requested that the compliance date for certification be extended a minimum of 18 months from the date of publication of the AEDM final rule.

On December 6, 2012, the Department proposed to extend compliance date an additional 12 months for commercial refrigeration equipment; commercial HVAC equipment; and commercial WH equipment (December 2012 NOPR). 77 FR 72763. DOE requested comment on its assumption regarding the existence of test data and on whether a longer or shorter period of time would be more appropriate. DOE also proposed to modify the regulatory text to reflect that the compliance dates for certification requirements for walk-in coolers and freezers, distribution transformers, and metal halide lamp ballasts have passed by removing the delayed compliance dates.

Lastly, the Department proposed to correct a technical drafting error for packaged terminal air conditioners and heat pumps that was implemented in the reprinting of Table 5 in 10 CFR 431.97 in a final rule published on May 16, 2012. 77 FR 28994. More specifically, DOE adopted changes to the applicable energy conservation standards for standard size and non-standard size packaged terminal air conditioners and heat pumps with a cooling capacity of 15,000 Btu/h. DOE proposed to correct this error and adopt the original standards for standard size and non-standard size packaged terminal air conditioners and heat pumps with a cooling capacity of 15,000 Btu/h as presented in a final rule evaluating and originally adopting the amended energy conservation for this equipment published on April 7, 2008. 73 FR 18915.

II. Discussion of Comments

The Department received 14 written comments on the NOPR from a number of interested commenters, including various manufacturers, trade associations, and advocacy groups. The following parties submitted comments for this rule:

A. Extension of Certification Deadline for Commercial Refrigeration Equipment; HVAC Equipment; and Commercial WH Equipment

As stated above, DOE proposed an additional 12-month extension to the compliance date for filing complete certification reports for manufacturers of commercial refrigeration equipment; commercial HVAC equipment; and commercial WH equipment. 77 FR 72763. Most commenters supported an extension of at least twelve months. (Seasons, No. 4 at p. 1; UTC, No. 8 at pp. 1-2; AAON, No. 9 at pp. 1-2; Ingersoll Rand, No. 10 at pp. 1-2; Lennox, No. 11 at pp. 1-2; Joint Comment, No. 12 at pp. 1-2; Rheem, No. 13 at p. 3; AHRI, No. 14 at p. 1; Traulsen, No. 15 at pp. 2-3, Burnham, No. 16 at p. 1; Goodman, No. 17 at pp. 1-2; and Mitsubishi, No. 18 at pp. 1-2)

Many commenters believed that the compliance date should be tied to the completion of the AEDM rule. (Seasons, No. 4 at p. 1; UTC, No. 8 at pp 1-2; Lennox, No. 11 at p.2; Rheem, No. 13 at p. 3; AHRI, No. 14 at pp. 1-2, Traulsen, No. 15 at p. 2-3; Goodman, No. 17 at pp. 1-2; and Mitsubishi, No. 18 at pp. 1-2) Similarly, AAON commented that the AEDM rule would impact the length of the extension needed. (AAON, No. 9 at p. 2) In addition, AAON, Lennox AHRI, Goodman, and Mitsubishi commented that they believe that the compliance date should be extended a minimum of 18 months from the publication of the AEDM final rule. (AAON, No. 9 at p.2; Lennox, No. 11 at p.2; AHRI, No. 14 at p. 2; Goodman, No. 17 at pp. 1-2; and Mitsubishi, No. 18 at pp. 1-2) Goodman detailed a view shared by Seasons, UTC, AAON, Lennox, and AHRI that the length of the extension required would depend upon the actual results of the testing (due to measurement uncertainties, variances in testing set-ups and product variances) and the tolerances allowed by DOE (for both individual test-to-simulation results as well as average test-to-simulation results), additional testing or a significant amount of effort in development/specification of the internal AEDM procedure may be required. (Goodman, 17 at p. 1; Seasons, No. 4 at p. 1; UTC, No. 8 at pp. 1-2; AAON, No. 9 at p. 2; Lennox, No. 11 at p. 2 and AHRI, No. 14 at p. 2) Ingersoll Rand commented that it was concerned that a December 31, 2013 compliance date may not be sufficient to permit the Department to conduct a negotiated rulemaking and allow manufacturers to develop a means to comply with any modified requirements. (Ingersoll Rand, No. 10 at p. 1-2) In particular, Ingersoll Rand stated that it “hope[s] the Department recognizes [the December 2013 date] is only a stopgap measure, not truly a feasible date for future compliance.” (Ingersoll Rand, No. 10 at p.2) Lennox also suggested that the compliance date should be aligned with the annual certification date for each product. (Lennox, No. 11 at pp. 2-3) Traulsen also supported extending the certification deadline stating that the commercial refrigeration industry may have collected energy consumption performance data for some base model of commercial refrigeration equipment, which may not be appropriate in all circumstances. (Traulsen, No. 15 at p. 2) Traulsen also noted that for certain low volume models of commercial refrigeration equipment current data may not be available because of previously conflicting priorities. (Id.) Mitsubishi also supported an 18-month extension from publication of the AEDM final rule and offered a specific path forward for the Department's consideration: (1) Finalize the AEDM rulemaking; (2) extend the certification compliance deadline for at least 18 months from the date of the AEDM final rule; (3) In the alternative, issue a written DOE Guidance Document regarding the delay of enforcement of commercial certification compliance until the AEDM rulemaking and accompanying extension are finalized; (4) begin the negotiated rulemaking process, which has already provided MEUS an opportunity to clarify the central issues and which is consistent with AHRI's proposed direction; and (5) develop a “basic model” definition that aligns with AHRI's definition—a basic model should be defined by the unit rather than levels of efficiency. (Id.)

One commenter supported the 12-month extension as proposed by the Department without modification. Specifically, Burnham commented in favor of a compliance extension similar to that proposed by the AHRI organization regarding the publication of the AEDM final rule. However, Burmham also clarified that a shorter timeframe would be feasible as well. (Burnham, No. 16 at p. 1)

Several commenters suggested that a significantly longer extension was needed. UTC noted that it believes an additional 12 to 36 months will be necessary after the issuance of a final AEDM rule prior to manufacturers being in a position to submit certification reports. (UTC, No. 8 at p.2) Hoshizaki requested a two-year extension for certification of commercial refrigeration equipment as it has not completed testing of its basic models and is waiting for DOE action on the AEDM rulemaking. (Hoshizaki, No. 6 at p. 1)

In light of the comments above, DOE is extending the compliance date for the certification provisions for commercial refrigeration equipment; commercial warm air furnaces, commercial packaged boilers, and commercial air conditioners and heat pumps (collectively referred to as commercial HVAC equipment); and commercial water heaters, commercial hot water supply boilers, and unfired hot water storage tanks (collectively referred to as commercial WH equipment) to December 31, 2013. DOE believes 12 months is a reasonable extension and will allow DOE time to complete the AEDM rulemaking and allow manufacturers to develop ratings in accordance with any revised AEDM provisions.

As noted above, the Department is reviewing the feasibility of a negotiated rulemaking to revise the certification requirements for commercial HVAC equipment and commercial refrigeration equipment. DOE is also considering the formation of an advisory committee in conjunction with such a rulemaking. Whether DOE proceeds with a negotiated rulemaking, and the outcome of a negotiated rulemaking, however, is uncertain. DOE believes that, should it proceed with a negotiated rulemaking, the process would, of its nature, involve discussion of any need to extend the new deadline further. Moreover, DOE believes that interested parties would raise the extension issue well in advance of December 31, 2013. Accordingly, DOE believes the 12-month extension is sufficient.

Many commenters submitted additional thoughts regarding the AEDM rulemaking, about the definition of “basic model” and about the potential for a negotiated rulemaking. (AAON, No. 9 at p.1; Ingersoll Rand, No. 10 at p. 1-2; Joint Comment, No. 12 at pp. 1-2; Rheem, No. 13 at pp. 1-3; AHRI, No. 14 at pp. 1-2, Goodman, No. 17 at pp. 1-2, and Mitsubishi, No. 18 at p. 2) DOE appreciates the information provided by parties on these matters. The substance of these comments is the subject of other rulemakings and should be raised in those proceedings. This rulemaking is limited to an extension of the compliance date for the March 2011 certification provisions for commercial HVAC equipment, commercial WH equipment, and commercial refrigeration equipment.

DOE emphasizes that the testing and sampling requirements for commercial refrigeration equipment; commercial HVAC equipment; and commercial WH equipment are unchanged by this extension. These regulations can be found on a per product basis in subpart B to part 429 (sampling plans for testing) and 10 CFR 431.64, 431.76, 431.86, 431.96, 431.106, and 431.134 (uniform test methods).

B. Extension of Certification Deadline for Automatic Commercial Ice Makers

In the December 2012 NOPR, DOE initially proposed to retain the December 31, 2012 deadline to certify compliance but sought comment on whether an extension was needed. Several commenters requested a six-month extension of time for submitting certification reports for automatic commercial ice makers (ACIM). (Scotsman, No. 5 at p. 1; Hoshizaki, No. 6 at p. 1; AHRI, No. 14 at p. 2) Scotsman requested additional time to work with AHRI so that AHRI could build a database to collect the required information and submit the certification reports on Scotsman's behalf. (Scotsman, No. 5 at p. 1) Hoshizaki explained that it has the required test reports but that AHRI's portal for reporting test data is not ready. (Id.) Scotsman, however, indicated that it will need to conduct additional testing prior to submitting certification reports. (Scotsman, No. 5 at p. 1) AHRI requested a six-month extension to allow manufacturers time to complete testing. (AHRI, No. 14 at p. 2)

Scotsman and Hoshizaki commented that DOE released the templates for certification of ACIM in December 2012 and stated that they did not have an automated process to provide many of the data elements contained in the templates. (Scotsman, No. 5 at p. 1; Hoshizaki, No. 6 at p. 1)

Traulsen, on the other hand, noted that it did not have a concern with the Department's proposed certification deadline of December 31, 2012 for ACIMs even though it does not manufacture or supply this type of equipment. (Traulsen, No. 15 at p. 3)

DOE expresses no view regarding an automated process that a regulated entity may develop to provide its certification reports. DOE notes that the data elements required for certification have been public since March 2011 and the CCMS templates for certification are available to manufacturers online. Given the concerns expressed by manufacturers, DOE is extending the compliance date for ACIM to align the compliance date with the next annual certification reporting date. Manufacturers would be required to submit only one certification report in 2013 for current basic models unless they implement design changes to those models resulting in lower efficiency or increased consumption. Consequently, DOE is adopting a compliance date of August 1, 2013, for submission of certification reports for ACIM.

C. Compliance and Enforcement

DOE emphasizes that all covered equipment must meet the applicable energy conservation standard. ASAP, ACEEE, ASE, and NRDC also noted in their joint comment that parties are not absolved of their obligations to comply with current standards and encouraged DOE to enforce those standards effectively. (Joint Comment, No. 12 at pp. 1-2) Furthermore, all testing procedures and sampling provisions are unaffected by this final rule. DOE is adopting a 12-month extension to the compliance date for certification only for the commercial refrigeration equipment; commercial HVAC equipment; and commercial WH equipment reporting requirements in the March 2011 final rule. DOE is adopting an 8-month extension to the compliance date for certification only for the ACIM reporting requirements in the March 2011 final rule.

DOE encourages manufacturers to become familiar with the CCMS prior to the certification deadline. The CCMS has templates currently available for all covered equipment available for manufacturers to use when submitting certification data to DOE.

DOE conducts assessment testing of products available for purchase in the United States, pursuant to 10 CFR 429.104. While certification is not required for commercial refrigeration equipment; commercial HVAC equipment; and commercial WH equipment until December 31, 2013, and for ACIM until August 1, 2013, DOE encourages manufacturers to submit to CCMS certification reports to DOE voluntarily prior to the compliance date required for certification. The Department will refrain from selecting models for assessment testing for which the manufacturer has submitted a valid certification report in CCMS. Specifically, in 2013, DOE will, in its enforcement discretion, limit any assessment testing of commercial refrigeration equipment, commercial HVAC equipment, commercial WH equipment, and automatic commercial ice makers to those models for which DOE does not have a valid certification report on file. If DOE purchases a unit for assessment testing prior to a manufacturer submitting a valid certification report, DOE will continue with the assessment test. A valid certification report is one that meets the requirements of 10 CFR part 429, including the manufacturer's determination of compliance being based either on testing in accordance with DOE sampling and test procedures (parts 429 and 431) or on the AEDM procedures in part 429.

DOE will continue to conduct enforcement testing when it has a reason to believe that products do not meet the applicable standard. In addition, DOE will continue to conduct limited testing in support of its rulemaking activities for these equipment types. DOE will also continue to conduct verification testing in support of the ENERGY STAR program.

AHRI commented that it supports DOE's enforcement policy. (AHRI, No. 14 at p. 2-3) DOE appreciates AHRI's support and notes that the enforcement policy is not tied to participation in a voluntary industry certification program and is based upon the voluntary submittal of a valid CCMS certification report to DOE in advance of the compliance date required for certification of the applicable equipment.

D. Other Compliance Dates

DOE proposed to modify the regulatory text to reflect that the compliance dates for walk-in coolers and freezers, distribution transformers, and metal halide lamp ballasts have passed. DOE did not receive any comments on this proposal. Thus, DOE is adopting these amendments to 10 CFR 429.12(i).

E. Technical Correction

The Department proposed to correct a technical drafting error for packaged terminal air conditioners and heat pumps that was implemented in the reprinting of Table 5 in 10 CFR 431.97 in a final rule published on May 16, 2012. 77 FR 28994. More specifically, DOE adopted changes to the applicable energy conservation standards for standard size and non-standard size packaged terminal air conditioners and heat pumps with a cooling capacity of 15,000 Btu/h. DOE did not receive any comments on this proposal.

Consequently, DOE is correcting this error in today's final rule by adopting the original standards for standard size and non-standard size packaged terminal air conditioners and heat pumps with a cooling capacity of 15,000 Btu/h as presented in a final rule evaluating and originally adopting the amended energy conservation for this equipment published on April 7, 2008. 73 FR 18915.

III. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

Today's regulatory action is not a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).

B. Administrative Procedure Act

DOE has determined, pursuant to authority at 5 U.S.C. 553(d)(1), that this final rule is not subject to a 30-day delay in effective date because this rule extending the compliance date for a requirement relieves a restriction.

C. Review Under the Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis (IFRA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site: http://energy.gov/gc/office-general-counsel.

DOE reviewed this rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This rule merely extends the compliance date of a rulemaking already promulgated. To the extent such action has any economic impact it would be positive in that it would allow regulated parties additional time to come into compliance. DOE did undertake a full regulatory flexibility analysis of the original Certification, Compliance, and Enforcement for Consumer Products and Commercial and Industrial Equipment rulemaking. That analysis considered the impacts of that rulemaking on small entities. As a result, DOE certifies that this rule will not have a significant economic impact on a substantial number of small entities.

D. Review Under the National Environmental Policy Act

DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this rule amends an existing rule without changing its environmental effect and, therefore, is covered by the Categorical Exclusion in 10 CFR part 1021, subpart D, paragraph A5. Accordingly, neither an environmental assessment nor an environmental impact statement is required

IV. Approval of the Office of the Secretary

The Secretary of Energy has approved publication of today's final rule.

List of Subjects

10 CFR Part 429

• Administrative practice and procedure
• Energy conservation
• Commercial equipment
• Reporting and recordkeeping requirements

10 CFR Part 431

• Administrative practice and procedure
• Energy conservation
• Commercial equipment
• Reporting and recordkeeping requirements

For the reasons set forth in the preamble, DOE amends chapter II, subchapter D, of Title 10 of the Code of Federal Regulations to read as follows:

PART 429—CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT

1. The authority citation for part 429 continues to read as follows:

Authority: 42 U.S.C. 6291-6317.

2. Revise § 429.12 paragraph (i) to read as follows:

PART 431—ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL EQUIPMENT

3. The authority citation for part 431 continues to read as follows:

Authority: 42 U.S.C. 6291-6317.

4. Revise Table 5 to § 431.97 to read as follows: